Decisions of the Nebraska Court of Appeals

MICHIE v. ANDERSON BUILDERS 731

Cite as 22 Neb. App. 731

Bernard Michie and Dianna Lee Estes, appellants, 

v. Anderson Builders, Inc., appellee.

___ N.W.2d ___

Filed February 3, 2015. No. A-14-200.

1. Workers’ Compensation: Appeal and Error. On appellate review, the findings 

of fact made by the trial judge of the Workers’ Compensation Court have the 

effect of a jury verdict and will not be disturbed unless clearly wrong.

2. Workers’ Compensation: Evidence: Appeal and Error. If the record contains 

evidence to substantiate the factual conclusions reached by the trial judge in 

workers’ compensation cases, an appellate court is precluded from substituting its 

view of the facts for that of the compensation court.

3. Workers’ Compensation: Appeal and Error. An appellate court is obligated 

in workers’ compensation cases to make its own determinations as to questions 

of law.

4. Foreign Judgments: Jurisdiction: States. A judgment rendered in a sister state 

court which had jurisdiction is to be given full faith and credit and has the same 

validity and effect in Nebraska as in the state rendering judgment.

5. Workers’ Compensation: Expert Witnesses. In order for expert testimony to 

be admissible in a workers’ compensation case, the witness must qualify as an 

expert, the testimony must assist the trier of fact to understand the evidence or 

determine a fact in issue, the witness must have a factual basis for the opinion, 

and the testimony must be relevant.

6. Workers’ Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact by the Workers’ 

Compensation Court, the evidence must be considered in the light most favorable 

to the successful party, every controverted fact must be resolved in favor of the 

successful party, and the successful party will have the benefit of every inference 

that is reasonably deducible from the evidence.

7. Workers’ Compensation: Expert Witnesses. The trial judge in a workers’ compensation case is entitled to accept the opinion of one expert over another.

Appeal from the Workers’ Compensation Court: Michael K. 

High, Judge. Affirmed.

Michael W. Meister for appellants.

Ryan C. Holsten, of Atwood, Holsten, Brown, Deaver & 

Spier Law Firm, P.C., L.L.O., for appellee.

Moore, Chief Judge, and Riedmann and Bishop, Judges.
Decisions of the Nebraska Court of Appeals

732 22 NEBRASKA APPELLATE REPORTS

Riedmann, Judge.

INTRODUCTION

Dianna Lee Estes appeals the decision of the Nebraska 

Workers’ Compensation Court, which found that although her 

husband, Bernard Michie, sustained a workplace injury, his 

subsequent death was not causally related to his injury. The 

court awarded indemnity payments, along with medical and 

hospital expenses incurred to the time of his death, but denied 

spousal benefits under the Nebraska Workers’ Compensation 

Act. For the reasons set forth below, we affirm.

BACKGROUND

Michie sustained an injury to his lower back in April 2010 

while pouring and leveling wet concrete in the course and 

scope of his employment with Anderson Builders, Inc. Michie 

underwent various treatments for the pain associated with his 

injury from April 2010 until he died unexpectedly in April 

2012. At the time of his death, Michie was taking two prescription medications related to his workplace injury: oxycodone 

for pain and cyclobenzaprine as a muscle relaxant. Prior to 

his death, Michie initiated this action, seeking indemnity and 

medical benefits under the Nebraska Workers’ Compensation 

Act. Following his death, Michie’s widow, Estes, filed an 

amended petition, seeking spousal benefits as well as funeral 

and burial expenses. She alleged that Michie died as a result 

of an accidental overdose of the medications he was prescribed 

for his workplace injury and that she was therefore entitled to 

death benefits.

A trial was held in the compensation court. Estes offered 

various exhibits, including Michie’s post mortem toxicology 

test results, an autopsy report, and the verdict of the coroner 

from Laramie County, Wyoming, which is the location where 

Michie died. The toxicology test results showed the presence 

of both prescription drugs in Michie’s blood at the time of his 

death. The concentration of oxycodone was 27 nanograms per 

milliliter, and the concentration of cyclobenzaprine was 60 

nanograms per milliliter.

The autopsy report was prepared by Dr. James A. Wilkerson 

IV, a forensic pathologist. Dr. Wilkerson’s conclusion as to 
Decisions of the Nebraska Court of Appeals

MICHIE v. ANDERSON BUILDERS 733

Cite as 22 Neb. App. 731

the cause of Michie’s death is stated in the autopsy report 

as follows:

Based upon the history and autopsy findings, it is my 

opinion that . . . Michie, a 49-year-old White male, had 

no definitive cause of death. History, scene findings, 

pulmonary edema and a full bladder, along with the 

toxicology findings, suggest multiple drug intoxication 

as the most likely cause of death. Prolonged metabolism 

while in a comatose but ultimately fatal state resulted 

in reduced levels of the drugs. The manner of death 

is undetermined.

The Laramie County coroner conducted an investigation 

and determined the cause of Michie’s death to be “mixed drug 

toxicity due to an overdose of his prescribed medications.” He 

determined the manner of death to be “accidental.”

Anderson Builders presented expert testimony of Dr. John 

Vasiliades, a board-certified clinical chemist, toxicologist, and 

forensic toxicologist. Dr. Vasiliades is currently employed as a 

laboratory director and toxicologist at a toxicology laboratory 

in Omaha, Nebraska. He holds both a bachelor’s degree and a 

doctorate degree in chemistry, and he has completed fellowships in chemistry and toxicology. He has qualified hundreds 

of times in state and federal court as a toxicology and forensic 

toxicology expert. However, Dr. Vasiliades is not a licensed 

physician or medical care provider.

Before rendering an opinion in this matter, Dr. Vasiliades 

reviewed Michie’s medical records, the autopsy report, the 

toxicology test results, and the death investigation report and 

verdict of the Laramie County coroner. Dr. Vasiliades was 

aware, based on his review of the records, that Michie had a 

history of back pain and had been taking 30 milligrams each 

of oxycodone and cyclobenzaprine daily for a long period 

of time.

Dr. Vasiliades testified that he is familiar with both of 

these prescription drugs and their effects on the human body. 

He testified that the concentrations of the two drugs found in 

Michie’s blood at the time of his death were in the therapeutic, or even “subtherapeutic,” range. The level of oxycodone 

in Michie’s blood was only 27 nanograms per millileter, 
Decisions of the Nebraska Court of Appeals

734 22 NEBRASKA APPELLATE REPORTS

which is consistent with what Dr. Vasiliades would expect 

for someone who was taking 30 milligrams of the drug per 

day. He explained that in order for oxycodone to become 

toxic, it must be in excess of 600 nanograms per milliliter. 

Regarding cyclobenzaprine, Dr. Vasiliades testified that it 

becomes toxic at levels in excess of 300 nanograms per milliliter, and Michie’s blood sample contained only 60 nanograms 

per milliliter.

Given that the concentrations of the drugs in Michie’s blood 

were so low, Dr. Vasiliades opined that the drugs “certainly” 

did not cause Michie’s death. He explained that neither drug 

concentration was high enough to cause death individually or 

in combination with one another, especially given that Michie 

was a chronic user and could likely withstand much higher 

concentrations of the drugs.

When questioned about the possibility that Michie had 

an adverse or allergic reaction to the drugs, Dr. Vasiliades 

explained that such reactions would have occurred within the 

first few times of taking the drugs. Because Michie had been 

taking the drugs over a long period of time, Dr. Vasiliades 

opined that Michie’s death was not caused by an adverse or 

allergic reaction to either medication.

The compensation court awarded indemnity and medical 

benefits for the back injury, but denied spousal benefits to 

Estes based on its finding that she failed to meet her burden 

of proving a causal link between Michie’s death and his workplace injury. It found that Dr. Wilkerson’s report as to the 

cause of death was conclusory in nature and not based upon 

toxicological science. It accepted the opinion of Dr. Vasiliades 

that the concentrations of oxycodone and cyclobenzaprine were 

well within the therapeutic range at the time of Michie’s death 

and did not cause his death.

Both Estes and Michie are named in the timely filed notice 

of appeal, but for ease of discussion, we will refer to Estes as 

the sole appellant.

ASSIGNMENTS OF ERROR

Estes assigns three errors on appeal: (1) The compensation 

court erred in failing to give full faith and credit to the verdict 
Decisions of the Nebraska Court of Appeals

MICHIE v. ANDERSON BUILDERS 735

Cite as 22 Neb. App. 731

of the Laramie County coroner, as required by U.S. Const. 

art. IV, § 1; (2) the compensation court erred when it allowed 

Dr. Vasiliades, a forensic toxicologist with no medical training, 

to testify on matters of causation over Estes’ objection, contrary to Nebraska law requiring medical testimony on causation in workers’ compensation cases; and (3) the compensation 

court erred in failing to find that the medication prescribed to 

Michie caused or contributed to his death and that Estes was 

entitled to workers’ compensation benefits.

STANDARD OF REVIEW

[1-3] On appellate review, the findings of fact made by 

the trial judge of the Workers’ Compensation Court have 

the effect of a jury verdict and will not be disturbed unless 

clearly wrong. Clark v. Alegent Health Neb., 285 Neb. 60, 825 

N.W.2d 195 (2013). If the record contains evidence to substantiate the factual conclusions reached by the trial judge in 

workers’ compensation cases, an appellate court is precluded 

from substituting its view of the facts for that of the compensation court. Id. An appellate court is obligated in workers’ 

compensation cases to make its own determinations as to 

questions of law. Id.

ANALYSIS

Full Faith and Credit to

Coroner’s Verdict

Estes first assigns that the compensation court erred in failing to give full faith and credit to the verdict of the Laramie 

County coroner, as required by U.S. Const. art. IV, § 1. 

We disagree.

[4] A judgment rendered in a sister state court which had 

jurisdiction is to be given full faith and credit and has the 

same validity and effect in Nebraska as in the state rendering judgment. In re Trust Created by Nixon, 277 Neb. 546, 

763 N.W.2d 404 (2009). We do not believe the verdict issued 

by the Laramie County coroner is a “judgment” entitled to 

full faith and credit. But even if it were, the Full Faith and 

Credit Clause would require our courts to give it the same 

validity and effect that it would have in Wyoming. See In re 
Decisions of the Nebraska Court of Appeals

736 22 NEBRASKA APPELLATE REPORTS

Trust Created by Nixon, supra. Estes has not pointed to any 

Wyoming law indicating what validity and effect a coroner’s 

verdict is given in Wyoming. According to our research, a 

coroner’s verdict is merely advisory and has no probative 

effect under Wyoming law. See Raigosa v. State, 562 P.2d 

1009 (Wyo. 1977).

Because the coroner’s verdict would not have been conclusive evidence in Wyoming courts as to Michie’s cause of 

death, the Full Faith and Credit Clause does not require that 

it be given such effect in our courts. Thus, the compensation 

court was entitled to consider and weigh the credibility of the 

coroner’s verdict, just as any other piece of evidence received 

at trial. This assignment of error has no merit.

Testimony on Cause of Death

For her second assignment of error, Estes asserts that 

the compensation court erred by allowing Dr. Vasiliades, 

a forensic toxicologist with no medical training, to testify 

on matters of causation, contrary to Nebraska law requiring 

medical testimony to prove causation. She argues, therefore, 

that the compensation court should have sustained her objections to Dr. Vasiliades’ testimony on the basis of foundation 

and relevance.

In support of her argument, Estes relies upon Mendoza v. 

Omaha Meat Processors, 225 Neb. 771, 780, 408 N.W.2d 280, 

286 (1987), which states:

“‘“Where the claimed injuries are of such a character as 

to require skilled and professional persons to determine 

the cause and extent thereof, the question is one of science. Such a question must necessarily be determined from 

the testimony of skilled professional persons and cannot 

be determined from the testimony of unskilled witnesses 

having no scientific knowledge of such injuries.” The 

employee must show by competent medical testimony a 

causal connection between the alleged injury, the employment, and the disability.’ . . .”

(Emphasis supplied.)

[5] We do not believe this case supports Estes’ argument. 

The fact that a plaintiff is required to show causation through 
Decisions of the Nebraska Court of Appeals

MICHIE v. ANDERSON BUILDERS 737

Cite as 22 Neb. App. 731

competent medical testimony does not mean that nonmedical 

expert testimony is inadmissible. In order for expert testimony 

to be admissible in a workers’ compensation case, the witness 

must qualify as an expert, the testimony must assist the trier 

of fact to understand the evidence or determine a fact in issue, 

the witness must have a factual basis for the opinion, and the 

testimony must be relevant. See Paulsen v. State, 249 Neb. 

112, 541 N.W.2d 636 (1996). We note that scientific testimony, 

rather than medical testimony, has been considered in a prior 

workers’ compensation case for purposes of determining causation. See Ward v. City of Mitchell, 224 Neb. 711, 400 N.W.2d 

862 (1987).

Here, although Dr. Vasiliades is not a medical expert, he is 

certainly qualified as an expert in the science of toxicology. 

He has a bachelor’s degree and doctorate degree in chemistry, 

and he completed fellowships in chemistry and toxicology. He 

is board certified in clinical chemistry, toxicology, and forensic toxicology, and is currently employed as a toxicologist at 

a toxicology laboratory. He has qualified hundreds of times in 

state and federal courts as a toxicology and forensic toxicology expert.

Dr. Vasiliades reviewed Michie’s medical records, the 

autopsy report, and the post mortem blood test results, which 

provided the proper factual foundation for his opinion. His testimony was certainly helpful to the trier of fact in understanding the toxicology reports and whether the concentration of 

prescription drugs found in Michie’s blood could have caused 

his death. Dr. Vasiliades’ opinion that the concentration of 

those drugs was therapeutic, rather than toxic, was relevant to 

the issue before the court: whether the prescription drugs contributed to or caused Michie’s death.

Because Dr. Vasiliades’ testimony was both relevant and 

supported by proper foundation, the compensation court did 

not err in admitting it as expert testimony. This assignment of 

error is without merit.

Denial of Spousal Benefits

Finally, Estes asserts the compensation court erred in failing 

to find that the medications prescribed for Michie’s workplace 
Decisions of the Nebraska Court of Appeals

738 22 NEBRASKA APPELLATE REPORTS

injury contributed to his death and that therefore, Estes was 

entitled to workers’ compensation benefits.

[6] A factual determination by the Nebraska Workers’ 

Compensation Court will not be set aside on appeal unless 

such determinations are clearly erroneous. Aken v. Nebraska 

Methodist Hosp., 245 Neb. 161, 511 N.W.2d 762 (1994). In 

testing the sufficiency of the evidence to support the findings 

of fact by the Workers’ Compensation Court, the evidence 

must be considered in the light most favorable to the successful party, every controverted fact must be resolved in favor 

of the successful party, and the successful party will have the 

benefit of every inference that is reasonably deducible from 

the evidence. Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 

383 (2013).

Here, the compensation court found that Estes failed to meet 

her burden of proving a causal link between Michie’s workplace injury and his subsequent death. In reaching this conclusion, the court rejected Dr. Wilkerson’s opinion as to the cause 

of death and instead accepted the opinion of Dr. Vasiliades that 

the concentrations of oxycodone and cyclobenzaprine were 

well within the therapeutic range and did not cause Michie’s 

death. We conclude that the record contains sufficient evidence 

to support these findings.

Estes argues on appeal that a causal link was established 

because the only medications found in Michie’s body at the 

time of his death were the medications prescribed to treat his 

workplace injury. However, the presence of the medications 

alone is not enough to establish a causal link between the 

injury and the death. Although Dr. Wilkerson believed that 

“multiple drug intoxication” was the “most likely cause of 

death,” Dr. Vasiliades testified that the concentration of those 

drugs was therapeutic, rather than toxic, and could not have 

caused Michie’s death.

[7] The trial judge in a workers’ compensation case is 

entitled to accept the opinion of one expert over another. See 

Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 743 N.W.2d 82 

(2007). We will not substitute our findings of fact for those 

of the compensation court when its findings are substantiated 
Decisions of the Nebraska Court of Appeals

GRAY v. KENNEY 739

Cite as 22 Neb. App. 739

by the record. See Clark v. Alegent Health Neb., 285 Neb. 

60, 825 N.W.2d 195 (2013). This assignment of error has 

no merit.

CONCLUSION

For the reasons set forth above, we affirm the decision of the 

compensation court.

Affirmed.

Graylin Gray, appellant, v. Michael Kenney, 

director of Nebraska Department of

Correctional Services, appellee.

___ N.W.2d ___

Filed February 3, 2015. No. A-14-378.

1. Affidavits: Appeal and Error. An appellate court reviews a district court’s 

denial of in forma pauperis status under Neb. Rev. Stat. § 25-2301.02 (Reissue 

2008) de novo on the record based on the transcript of the hearing or the written 

statement of the court.

2. Constitutional Law: Judgments. Except in those cases where the denial of in 

forma pauperis status would deny a defendant his or her constitutional right to 

appeal in a felony case, Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2008) allows 

the court on its own motion, or upon objection by any interested party, to deny in 

forma pauperis status on the basis that the legal positions asserted by the applicant are frivolous or malicious.

3. Actions: Words and Phrases. A frivolous legal position pursuant to Neb. Rev. 

Stat. § 25-2301.02 (Reissue 2008) is one wholly without merit, that is, without 

rational argument based on the law or on the evidence.

4. Habeas Corpus: Judgments: Collateral Attack. Under Nebraska law, an action 

for habeas corpus is a collateral attack on a judgment of conviction.

5. Judgments: Collateral Attack. Only a void judgment may be collaterally 

attacked.

6. Judgments: Jurisdiction: Collateral Attack. Where the court has jurisdiction of the parties and the subject matter, its judgment is not subject to collateral attack.

7. Habeas Corpus: Jurisdiction: Sentences. A writ of habeas corpus will not lie to 

discharge a person from a sentence of penal servitude where the court imposing 

the sentence had jurisdiction of the offense and the person of the defendant, and 

the sentence was within the power of the court to impose.

8. Habeas Corpus. A writ of habeas corpus is not a writ for correction of errors, 

and its use will not be permitted for that purpose.